Balance of Power

    Nolan spread his arms in an elegant shrug. 'Certainly,' he said in the same placid tone, 'it may be possible for a manufacturer to foresee— or at least imagine—that at an unknown place, at an unknown time, some unknown person may perpetrate a tragedy. But foreseeability is merely one element of an action for wrongful death. The most essential element is causation—that Lexington caused this man to kill these victims.

    'Lexington did not tell him, let alone cause him, to murder Mary Costello's family—any more than it caused him to abuse his wife or hate the President and First Lady for their apparent, though insufficient, acts of intervention on his wife's behalf.'

    This, Sarah thought, was artful: the first suggestion, stated as an afterthought, that Mary Costello's lawsuit was designed to expiate the Kilcannons for their own neglect. 'This lawsuit,' Nolan continued, 'is legislation by litigation. Because the plaintiff dislikes the gun laws as written by the Congress, she asks this Court to invent some. But it is the role of this Court to interpret existing laws, not make up new ones. That job belongs to the House and Senate . . .'

    And Fasano and the SSA, Sarah thought, were working overtime on that. But Bond appeared content. With a brisk nod, he told Nolan, 'I understand your argument, Mr. Nolan,' and then turned to Lenihan and Sarah. 'Who will speak for the plaintiff?'

* * *

'A Ferrari,' Robert Lenihan opened bluntly, 'is not a killing machine. Nor is a bottle of Scotch. But load up a Lexington P-2 with forty Eagle's Claw bullets, and that's exactly what you have—a weapon whose only use is to shoot a lot of people quickly, at very short range, with the maximum assurance that all of them will die.'

    In style, Sarah thought, Lenihan could not be more different than John Nolan—staccato, impassioned, contemptuous of legal niceties. Immediately, Bond shot back, 'Mr. Nolan's point is that under California law, Lexington Arms—like the makers of a Ferrari or Glenfiddich Scotch—cannot be liable if their product is not defective.'

    'On that point,' Lenihan said with scorn, 'I can't agree more with Mr. Nolan. John Bowden's P-2 was certainly not defective. It worked exactly as advertised.

    'What else is the P-2 good for but killing humans? Not for hunting deer, unless the deer approaches you—after which there wouldn't be enough left of him to hang up on the wall. And the Eagle's Claw bullet? That was good for only one thing: ensuring that Marie Bowden did not outlive her family.

    'That's why it was designed to become the six deadly knife points which shredded Marie's vena cava. That's why the P-2 was designed to accommodate forty such bullets. And that, Your Honor, is the manner in which Lexington chose to market them.'

    Already, Sarah understood why Robert Lenihan excelled with juries. But it was far from clear that Gardner Bond would let this case reach a jury. In contrast to his demeanor with Nolan, Bond scrutinized Lenihan with the clinical disdain of a pathologist examining a cancer through a microscope. 'Not foreseeable?' Lenihan asked rhetorically. 'What Lexington's defense comes down to is this: 'We may be marketing to murderers and criminals, but we didn't cause these murders because we didn't know this murderer by name . . .' '

    'What about the Richards case?' Bond snapped.

    'Irrelevant. There's no profit in leaving keys in an unlocked car. Lexington profited by marketing death to people like John Bowden . . .'

    'You're not claiming,' Bond persisted, 'that these ads are in any way misleading?'

    'Far from it,' Lenihan answered sardonically. 'That's my point.'

    Bond leaned forward. 'Then aren't they—however objectionable you may find them—commercial speech protected by the First Amendment?'

    'No, Your Honor—for two reasons. First, commercial speech is less protected than pure political speech. Second, freedom of speech is not absolute, as Justice Holmes recognized in saying, 'There is no right to shout 'fire' in a crowded theatre.' Freedom of speech must be balanced against the harm of speech such as this . . .'

    'And yet,' Bond retorted, 'one can shout 'fire' if it's true. If selling the P-2 should not be legal, isn't that a matter for Congress? And isn't this lawsuit, as Mr. Nolan suggests, an effort to usurp the role of Congress?'

    'Not at all,' Lenihan countered. 'As our brief details, this lawsuit is grounded in the California law of torts . . .'

    'I've read your brief,' Bond interrupted brusquely, 'and comprehend your argument. It's time to hear from the SSA regarding the claims against it. Such as they may be.'

    Disheartened, Sarah picked up her pen.

* * *

    Everything that Lenihan was, Sarah thought, Harrison Fancher was not. His voice was thin but harsh, and his demeanor suggested a man who preferred dark corners, the nooks and crannies of concealed strategy, to the messiness of dealing with humanity at large. His skills were those of a tactician gifted with a first-class mind, a monomaniacal persistence and an inexhaustible sourness of spirit. In the law, Sarah had noticed, such persons tended to go far.

    'This,' Fancher told Gardner Bond with an air of spite, 'is a spite suit. Let me be clear: the Kilcannon Center and its political allies have failed to achieve their goal of discrediting the advocates of gun rights. So now they would use this court to deny the SSA its First Amendment rights to defend the Second Amendment rights of all Americans.'

    'Then clear this up,' Bond interjected. 'If Lexington were liable for its advertisement, would the SSA be liable for printing it?'

    'Not at all.' Fancher folded his hands in front of him, body hunched in a defensive crouch. 'No question—the claims against Lexington are phantasmagorical. But to rope in the SSA is an outrage.

    'Mary Costello's lawyers make two claims. First, that the SSA ran a truthful ad, written by Lexington, that they imagine John Bowden saw.' Fancher's voice filled with sarcasm. 'So if the San Francisco Chronicle accepts an ad by a maker of pesticides, and a disaffected wife puts it in her husband's soup, the Chronicle is liable to his children?

    'What nonsense. In desperation, these lawyers have concocted worse nonsense: a 'conspiracy' in which the SSA forces Lexington to sell the P-2 and Eagle's Claw bullets at gun shows—the first 'conspiracy' in history, at least under the antitrust laws, where the alleged pernicious purpose is to compel a wholly legal act . . .'

    'Plaintiff's broader claim,' Bond corrected him, 'is that the SSA directed Lexington in the acts leading to the so-called wrongful death of Ms. Costello's relatives.'

    'But on what basis?' Fancher asked. 'That the SSA aggressively advocates gun rights, in the Congress and out? That's our right as citizens. Just as our members have the right not to buy a company's products because they no longer like what it stands for.' Pausing, he turned to Sarah. 'A choice, when exercised against so-called villains like 'big tobacco,' which is advocated by the Kilcannon Center itself.'

    With a studied lack of expression, Sarah scribbled on her notepad, 'Economic gain.' As if on cue, the judge told Fancher, 'Plaintiff also alleges that the SSA encouraged other gun makers to isolate Lexington in the event of a boycott, encouraging them to divide Lexington's market share should it reach an agreement with the President regarding gun shows. Might not that violate the antitrust laws?'

    Fancher grimaced. 'It's a pity,' he said with reedy contempt, 'that, on motions to dismiss, the presumption of truth is given to the scrupulous and unscrupulous alike. At this juncture, this Court is required to credit such fantasies. But plaintiff's counsel is required to have a reasonable basis for believing them. At some juncture, I hope the Court will inquire as to whether counsel has defrauded it.'

    'You can be sure,' Bond countered stiffly, 'that this Court will never permit a fraud to go to trial. But, as of now, all it can do is wonder.' Abruptly turning to Lenihan and Sarah, Bond demanded, 'Which one of you cares to